Cert. Granted in Chiles v. Salazar: A Case Concerning Conversion Therapy Bans

Justice Thomas, Justice Alito, and Justice Kavanaugh have done something they were previously unable to in 2023: they convinced another justice to join them in granting certiorari to review the constitutionality of conversion therapy bans. On March 10th, 2025, the Court granted cert. in Chiles v. Salazar, which asks “whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.”

Broadly, conversion practices are “any intervention that seeks to change a person’s sexual orientation or gender identity. Conversion practices work towards one goal, and that is to ‘cure’ someone from being lesbian, gay, bi, trans, ace, intersex, and/or queer.” There is overwhelming evidence that conversion therapy is harmful, ineffective, and is “rejected by every mainstream medical and mental health organization.” It is thus unsurprising that 23 States and Washington D.C. have passed bans on conversation therapy practices. However, the petitioner in Chiles, a licensed counselor, seeks to invalidate all 24 bans, citing that such bans are a violation of the Free Speech Clause.

The Circuit Courts are split as to this question. Most recently, the Tenth Circuit, the lower court in Chiles, joined the Ninth Circuit in adjudicating that conversion therapy bans regulate conduct, not speech. In doing so, both the Ninth and Tenth Circuit upheld the constitutionality of these bans. The Third Circuit, which upheld the bans, treated the bans as a regulation of speech. Importantly, however, the Third Circuit made clear that the speech in question was “professional speech” and “a licensed professional does not enjoy the full protection of the First Amendment when speaking as part of the practice of her profession.” Notably, the Third Circuit emphasized that this lesser protection applies “only when it is used to provide personalized services to a client based on the professional’s expert knowledge and judgement.” The Court reasoned that because a licensed practitioner often has specialized knowledge that a client lacks, the client has “no choice but to place their trust in these professionals, and, by extension, in the State that licenses them.” Thus, while the State’s regulation may affect speech, interfering with the State’s ability to regulate a profession would “unduly undermine its authority to protect its citizens from harm.”

In 2020, The Eleventh Circuit became the only Circuit to strike down a conversation therapy ban, citing that “the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

In his dissent to the denial of certiorari in Tingley v. Ferguson (2023), a similar conversion therapy ban case, Justice Thomas made clear that he was sympathetic to the Free Speech claim made by the Eleventh Circuit. He wrote, “under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities…that is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”

For the sake of argument, let’s assume that Justice Thomas is right that these conversion therapy bans are a restriction on free speech. Despite the majority’s holding in the Eleventh Circuit, it seems clear that the bans would survive strict scrutiny—and Circuit Judge Beverly Martin, who dissented from the Eleventh Circuit’s 2-1 decision, agreed. Judge Beverly notes that “a content-based restriction on speech is valid if it is the least-restrictive means of furthering a compelling government interest.” Because of the consensus of the harms of conversion therapy, the government certainly has a compelling interest in regulating such practices. For instance, it is the sad reality that about 27% of U.S. LGBTQ+ youth who had experienced conversion therapy had attempted suicide within the past 12 months (as of 2023). Additionally, a recent Stanford study of 4,426 people found “an association between recall of conversion practices and symptoms of depression, post-traumatic stress disorder, and suicide.” Therefore, the States have a compelling interest in protecting LGBTQ+ persons from physical and emotional harm.

The bans on conversion therapy are also sufficiently narrowly tailored to advance this compelling interest. As Williams-Yulee v. The Florida Bar (2015) makes clear, a law fails to survive the tailoring test if it is either underinclusive (if it does not regulate enough conduct) or overinclusive (if it regulates too much conduct). The therapists in the Eleventh Circuit’s case claimed that the law was underinclusive, because it only restricted conversion therapy practices by therapists and not by religious leaders. But as Judge Martin points out, “a law regulating religious administration of [conversion therapy] might run into Establishment Clause issues.” It is therefore reasonable for religious leaders to be left out of the ban, and thus the statute is not underinclusive. The statute is likewise not overinclusive. The bans do not outright prohibit the discussion of conversion therapy, nor do they force individuals to adopt or speak a certain viewpoint. The statutes simply say that insofar as they are acting in their official capacity as a licensed practitioner, individuals may not engage in practices that seek to change a minor’s sexual orientation or gender identity. This is, therefore, the least restrictive means of achieving a compelling state interest. Thus, even if the Court decides that these bans are regulation of speech, they must also find that the statutes nonetheless survive strict scrutiny and must be upheld.

Some may argue that the certiorari grant was merely to resolve a circuit split and that LGBTQ+ individuals need not be alarmed. But if the Court’s recent treatment of LGBTQ+ rights in cases like 303 Creative (2023) and Masterpiece Cakeshop (2018) is any indication, the outcome may not be so neutral. A decision that strikes down conversion therapy bans under the First Amendment could undermine a state’s ability to protect LGBTQ+ youth from demonstrable harm. As the Court prepares to hear Chiles v. Salazar, the stakes could not be higher for the future of LGBTQ+ rights and the government’s ability to regulate harmful professional practices.